Congress pushes (again) for ISP data retention

Silicon Justice The US Congress is trying to land a one-two sucker punch on internet service providers (ISPs).

A flurry of bills introduced in the House and Senate last week have resurrected data retention and data security proposals for ISPs that floundered in previous legislative sessions. The bills would create retention requirements for user data and also mandate ISPs to implement new policies and procedures to protect that data, thus hitting the ISPs with the proverbial double-whammy.

The data retention requirements sit within the so-called Safety Act introduced by Representative Lamar Smith, a Texas Republican, as part of the "Law and Order Agenda" that he and other Republicans have begun pushing in the House. The bill deals mostly with labeling requirements for porn sites, but also contains sweeping data retention language that would give the Attorney General broad discretion in issuing retention regulations.

The wide-open language of the Safety Act would require the AG to order the retention of, at a minimum, the name and address of every subscriber or user corresponding to an assigned IP address or user identification. Thus, ISPs would have to retain logs of personal information relating to every IP address or user name.

Since those requirements only represent the bare minimum, the AG could decide to require ISPs to hold on to even more information - such as traffic and location information, or even the content of electronic communications. Also conspicuously absent from the text of the bill is any time limit on the retention, so the AG could potentially require ISPs to retain vast stores of sensitive data forever.

Judging from the context of the data retention language, the requirement would seem to have the tracking of viewers and distributors of child pornography as its goal. The wording of the bill creates no such distinction, however, and instead states that the regulations would facilitate compliance with any court order - whether civil or criminal - that would require the production of such information. (That noise you hear in the background is the sound of the RIAA salivating.)

The data retention requirement, if it becomes law, will impose new costs on ISPs as they add storage capabilities to handle all the data that the bill will require them to keep. Until now, ISPs could destroy data as part of their normal operations, unless the government made a request to have the data preserved. If the Safety Act's retention requirement comes into effect, ISPs will have to add new storage equipment and routines in order to deal with the massive amounts of retained information.

ISPs aren't likely to take this possibility lying down. When data retention came up in the EU, the London Internet Exchange (LINX) Europe's second biggest internet exchange point, declared that data retention essentially constituted a tax on internet users to pay for government spying.

Given the political sensitivity of government eavesdropping in the US these days, this is rhetoric that just might prove effective at killing or modifying the retention provision. (It didn't have the same efficacy in the EU, though, where the retention requirements passed and are set to take effect next year.)

If, as in the case of the EU regulations, the ISP lobby is unsuccessful in blocking the bill, they will likely pass the cost onto consumers, leaving businesses and individuals to pick up the tab for the government's vast storehouse of personal information.

This potential cost becomes even more substantial when the data retention proposal is viewed alongside a push in the Senate for increased protection of electronically stored personal information.

Senators Patrick Leahy and Bernie Sanders of Vermont - a Democrat and Independent, respectively - re-introduced a bill to protect personal data after an embarrassing data breach at the Vermont Agency of Human Services. Sen. Leahy introduced an almost identical bill with Republican Senator Arlen Specter of Pennsylvania during the last Congress, but that bill failed to make it to a floor vote.

This new bill represents a sweeping reform of privacy requirements for data brokers and data furnishers, as well as any business entity that deals with sensitive personal information for more than 10,000 people in the US. It orders such business entities (other than those that are already subject to specific privacy laws) to provide "protection equal to industry standards, as identified by the Federal Trade Commission," corresponding to the type of personal data the entity collects.

Based on what the AG's retention regulations end up requiring, the retained data could potentially fall under the data privacy act's provisions if it meets the definition of "sensitive personally identifying information." Two components of that definition are already met: the user's name and address must be collected under the Safety Act. If the regulations also require ISPs to store the contents of electronic communications, there is a possibility that, somewhere in the communications, users might reveal another component of the term's definition, such as their birthday or their mother's maiden name.

This possibility would require ISPs to implement "industry standard" security measures to protect the massive amounts of information that they are required to retain. Fortunately, the privacy act explicitly forbids the FTC from giving greater legal weight to any one technology or specification over the others, so there should still, in theory, be competition among the security vendors for the juicy ISP contracts. While this will keep costs down, it won't eliminate them entirely, which means that security vendors and professionals have a lot to gain from the passage of this bill.

(We suspect that security and storage industry lobbyists are already working hard to smooth the passage of these bills into law. For the public good, of course.)

While the privacy bill contains many features that would indeed protect consumers' sensitive personal information, or at least let them know when there has been a security breach, the two bills in concert ignore the fact that security systems are imperfect tools. Many of the companies that have experienced security breaches in the past two years have had "industry standard" security measures in place, yet the breaches have still occurred.

As we all know, having a lock on your flat doesn't ensure that it will never get robbed. The chances of a break-in only go up, too, if the government starts requiring you to store boxes of valuable items that you normally wouldn't leave lying around after a certain amount of time.

By ordering ISPs to retain data and simultaneously holding them to heightened security requirements for that data, the Congress is taking steps towards ensuring that consumers suffer more harm, not less. Since a break-in is inevitable, no matter how strong the locks are, having more data around only increases the number of people whose sensitive information is vulnerable to exploitation. Plus, even if consumers fall into the lucky group whose data isn't ever compromised, they will still have to shoulder the costs of the ISPs' compliance with the new regulations.

Whether or not either of these bills will become law remains to be seen. After all, they were both previously introduced in bygone legislatures, and both failed to reach the President's desk. If they do manage to emerge from the halls of Congress as the law of the land, however, ISPs and consumers will take a direct hit to the wallet as the ISPs try to wrangle the costs of compliance.

For storage and security vendors, however, it could be a new era of wine and roses.®